The plaintiff, as an employee of the defendant, while rightfully in a passageway adjoining machinery used in the business of the defendant, slipped and in falling caught his hand between cogwheels revolving on one of said machines and sustained injuries for which this action is brought.
The notice served upon the defendant by the plaintiff did not sufficiently comply with the Employers' Liability Act (Laws of 1902, chap. 600, § 2) to sustain an action under the provisions thereof.
The notice was not simply informal, inartistic and vague, but wholly wrong in a material part. It stated a definite place where the accident occurred. The place as stated therein appears in the quotation therefrom as follows: "That because of the greasy and slippery and defective condition of the floor around and about the machine at which he was at work, he slipped and his left hand was caught in said machine." It subsequently and while the action was pending appeared that the slippery condition of the floor was around and about, and the injury to the hand occurred at another and different machine adjoining an aisle through which the plaintiff was walking at the time of the accident.
A notice of the place of an injury which it is claimed has occurred by reason of slipping upon a greasy floor and by falling upon the cogs of the revolving wheels of a machine not properly guarded should be sufficiently accurate to enable the employer to identify the machine. A notice stating the wrong machine, even if it is located in the same factory as the right one, is not only misleading but it fails to give the employer any correct information of the employee's claim to enable him from the notice to investigate the same.
The action can be maintained as one at common law, and the plaintiff relies largely upon the mandatory provisions of the Labor Law (Consolidated Laws, chapter 31). Section 81 of the Labor Law is as follows: *Page 526 "All * * * cogs, gearing, * * * shafting * * * and machinery, of every description, shall be properly guarded."
The defendant claims that the cogs, gearing, shafting and machinery so used by it were properly guarded, but upon all the facts and circumstances relating to its exposure, as disclosed by the record, that was a question of fact to be determined by the jury. (Scott v. International Paper Co., 204 N.Y. 49.)
The risks occasioned by the failure of the employer to supply statutory safeguards were not, as a matter of law, assumed by the employee, though he had full knowledge of such failure. (Fitzwater v. Warren, 206 N.Y. 355.)
The judgment should be reversed and a new trial granted, with costs to abide the event.